Citation Nr: 0825528
Decision Date: 07/30/08 Archive Date: 08/06/08
DOCKET NO. 05-12 782 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased (compensable) disability
rating for service-connected alopecia.
2. Entitlement to an increased (compensable) disability
rating for a service-connected bunion of the right foot.
3. Entitlement to an increased (compensable) disability
rating for a service-connected left knee scar.
4. Entitlement to an increased disability rating for
service-connected right knee arthritis, currently evaluated
as 10 percent disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Donohue, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1997 to
February 2004.
Procedural history
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a June 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Detroit, Michigan (RO) which granted service connection for
alopecia, a right foot bunion, a left knee scar, and right
knee arthritis. The veteran disagreed with the assigned
disability ratings. The veteran subsequently timely appealed
and waived her right to a hearing.
In June 2007 the Board remanded the above-listed issues for
further development. A supplemental statement of the case
(SSOC) which continued to deny the veteran's increased rating
claims was issued by the VA Appeals Management Center (AMC)
in April 2008. The case is once again before the Board.
Issues not on appeal
The June 2004 RO rating decision also denied service
connection for otitis media, a low back condition and a right
shoulder condition. In June 2007, the Board denied the
veteran's claims of entitlement to service connection for
otitis media, a low back condition and a right shoulder
condition. To the Board's knowledge, the veteran has not
appealed to the United States Court of Appeals for Veterans
Claims
(the Court). Those issues are therefore no longer in
appellate status and are not now before the Board.
FINDINGS OF FACT
1. The veteran's service-connected alopecia is manifested by
hair loss measuring 20 percent of the veteran's scalp.
2. The veteran's right foot bunion symptomatology includes
pain and tenderness. She was diagnosed with a moderate
bunion of the right foot during a February 2008 VA
examination.
3. The veteran's two left knee scars measure 1/2 inch in
diameter each and are not tender, painful or otherwise impact
her left knee range of motion.
4. The medical and other evidence of record indicates that
the veteran's service-connected right knee arthritis is
manifested by complaints of pain and some limitation of
motion.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a 10 percent
disability rating for the veteran's service-connected
alopecia have been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.118, Diagnostic Code 7830 (2007).
2. The criteria for the assignment of a 10 percent
disability rating for the veteran's service-connected right
foot bunion have been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007).
3. The criteria for an increased (compensable) disability
rating for the veteran's service-connected left knee scars
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.118, Diagnostic Code 7802 (2007).
4. The criteria for an increased disability rating for the
veteran's service-connected right knee arthritis have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71,
4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks entitlement to an increased rating for the
above-listed conditions. In the interest of clarity, the
Board will first discuss certain preliminary matters. The
Board will then render a decision.
Stegall concerns
In June 2007, the Board remanded this case to the AMC in
order to provide the veteran with additional notice of the
Veterans Claims Act of 2000 (the VCAA). The claims were then
to be readjudicated.
The record reveals that the veteran was sent a corrective
VCAA notice letter in July 2007. The AMC readjudicates all
four issues via the April 2008 SSOC. Thus, the Board's
remand instructions have been complied with. See Stegall v.
West, 11 Vet. App. 268, 271 (1998) [where the remand orders
of the Board are not complied with, the Board errs as a
matter of law when it fails to ensure compliance].
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2007)
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issues on appeal.
As was noted above, the Board previousy remanded this case so
that additional VCAA notice could be provided to the veteran.
This was accomplished.
The veteran was informed of the evidentiary requirements for
an increased rating in a letter from the AMC dated July 9,
2007, including a request for evidence that her service-
connected disabilities have gotten worse.
Crucially, the AMC informed the veteran of VA's duty to
assist her in the development of her claim in the above-
referenced July 2007 letter, whereby the veteran was advised
of the provisions relating to the VCAA. Specifically, the
veteran was advised that VA would assist her with obtaining
"relevant records from any Federal agency. This may include
medical records from the military, from VA Medical Centers
(including private facilities where VA authorized treatment),
or from the Social Security Administration." With respect
to private treatment records, the letter informed the veteran
that the VA would make reasonable efforts to obtain private
or non-Federal medical records to include "records from
State or local governments, private doctors and hospitals, or
current or former employers." Furthermore, the VA included
copies of VA Form 21-4142, Authorization and Consent to
Release Information, which the veteran could complete to
release private medical records to the VA.
The July 2007 letter further emphasized: "If [there is]
evidence [that] is not in your possession, you must give us
enough information about the evidence so that we can request
it from the person or agency that has it. If the holder of
the evidence declines to give it to us, asks for a fee to
provide it, or VA otherwise cannot get the evidence, we will
notify you. It is your responsibility to make sure we
receive all requested records that are not in the possession
of a Federal department or agency." [Emphasis as in the
original]
The Board notes that the July 2007 letter from the AMC
requested of the veteran: "If there is any other evidence or
information that you think will support your claim, please
let us know. If you have any evidence in your possession
that pertains to your claim, please send it to us." The
letter thus complied with the "give us everything you've got"
requirement of 38 C.F.R. § 3.159(b)(1) because the letter
informed the veteran that she could submit or identify
evidence other than what was specifically requested by VA.
There have been two significant Court decisions concerning
the VCAA during the course of this appeal. In Dingess v.
Nicholson, 19 Vet. App. 473 (2006), the Court observed that a
claim of entitlement to service connection consists of five
elements: (1) veteran status; (2) existence of a disability;
(3) a connection between the veteran's service and the
disability; (4) degree of disability; and (5) effective
date. Because a service connection claim is comprised of
five elements, the Court further held that the notice
requirements of section 5103(a) apply generally to all five
elements of that claim. Therefore, upon receipt of an
application for a service connection claim, section 5103(a)
and section 3.159(b) require VA to review the information and
the evidence presented with the claim and to provide the
claimant with notice of what information and evidence not
previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
The veteran was provided specific notice of the Dingess
decision in the above-referenced July 2007 letter, which
detailed the evidence considered in determining a disability
rating, including "nature and symptoms of the condition;
severity and duration of the symptoms; and impact of the
condition and symptoms on employment." The veteran was also
advised in the letter as to examples of evidence that would
be pertinent to a disability rating, such as on-going
treatment records, recent Social Security determinations and
statements from employers as to job performance and time lost
due to service-connected disabilities.
With respect to effective date, the July 2007 letter
instructed the veteran that two factors were relevant in
determining effective dates of increased rating claims: when
the claim was received; and when the evidence "shows a level
of disability that supports a certain rating under the rating
schedule or other applicable standards." The veteran was
also advised in the letter as to examples of evidence that
would be pertinent to an effective date determination, such
as information about continuous treatment or when treatment
began, service medical records the veteran may not have
submitted and reports of treatment while attending training
in the Guard or Reserve.
There is no timing problem as to VCAA or Dingess notice.
Specifically, since the veteran's claim was readjudicated in
the April 2008 SSOC, following the issuance of the July 2007
letter, the essential fairness of the adjudication was not
affected. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.
2007).
The Board notes that with respect to appeals of initially
assigned disability ratings, such as the instant case, the
additional notice requirements recently set forth in Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008), do not apply.
Specifically, once service connection has been granted, VA's
VCAA notice obligations are fully satisfied and any defect in
the notice is not prejudicial. See Hartman v. Nicholson, 483
F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.
112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet.
App. May 19, 2008) [where a claim has been substantiated
after the enactment of the VCAA, the appellant bears the
burden of demonstrating any prejudice from defective VCAA
notice with respect to any downstream elements].
The Board further notes that neither the veteran nor her
representative have alleged that the veteran has received
inadequate VCAA notice. The veteran is obviously aware of
what is required of her and of VA. Because there is no
indication that there exists any evidence which could be
obtained which would have an effect on the outcome of this
case, no further VCAA notice is necessary. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not
required where there is no reasonable possibility that
additional development will aid the veteran].
In short, the record indicates that the veteran received
appropriate notice pursuant to the VCAA.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2007).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate her claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.
In particular, the VA has obtained the veteran's service
treatment records, VA outpatient medical records and provided
her with several VA examinations.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2007). The veteran has been accorded the opportunity to
present evidence and argument in support of her claim. She
has declined to exercise his option of a personal hearing.
Accordingly, the Board will proceed to a decision.
1. Entitlement to an increased (compensable) disability
rating for service-connected alopecia.
Relevant law and regulations
Increased ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2007). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual disorders in civil
occupations. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321(a), 4.1 (2007).
Assignment of diagnostic code
The veteran has been service-connected for alopecia under 38
C.F.R. § 4.118, Diagnostic Code 7831 [alopecia areata].
Diagnostic Code 7831 establishes a zero percent evaluation
for alopecia areata with loss of hair limited to the scalp
and face. A 10 percent evaluation is assigned for loss of
all body hair.
The assignment of a particular diagnostic code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).
One diagnostic code may be more appropriate than another
based on such factors as an individual's relevant medical
history, the diagnosis and demonstrated symptomatology. Any
change in a diagnostic code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992).
In this case the veteran's alopecia has been rated under
Diagnostic Code 7831 [alopecia areata]. After reviewing the
medical evidence, the Board believes that Diagnostic Code
7830 [scarring alopecia] is more appropriate as it deals
specifically with the form of alopecia that the veteran has
been diagnosed with, namely scarring alopecia. See a
February 2005 VA outpatient treatment report.
Specific schedular criteria
The applicable rating criteria for skin disorders, found at
38 C.F.R. § 4.118, were amended effective August 30, 2002.
See 67 Fed. Reg. 49490-99 (July 31, 2002). Because the
veteran filed her claim in February 2004, after the criteria
were amended only the current version of the schedular
criteria are available.
Under Diagnostic Code 7830 [scarring alopecia], a
noncompensable rating is assigned for scarring alopecia
affecting less than 20 percent of the scalp.
A 10 percent rating is assigned if the disorder affects 20 to
40 percent of the scalp and a 20 percent rating is warranted
if the disorder affects more than 40 percent of the scalp.
Analysis
Schedular rating
The veteran's service-connected alopecia has been rated
noncompensably (zero percent) disabling. Under Diagnostic
Code 7830, alopecia affecting 20 to 40 percent of the scalp
warrants a 10 percent disability rating and a 20 percent
rating is warranted if the disorder affects more than 40
percent of the scalp.
In this case, the medical evidence indicates that the veteran
alopecia manifests in two patches of hair loss on the
veteran's scalp. These areas measure 6 cm x 6 cm each and
constitute 20 percent of her entire scalp. See the report of
the February 2008 VA examination. Since the veteran's
scarring alopecia affects 20 percent of her scalp, a
10 percent disability rating is warranted.
The Board notes that there is no medical evidence which
indicates that the veteran's scarring alopecia affects more
than 40 percent of her scalp, and the veteran does not so
contend. Indeed, the veteran's alopecia barely meets the
criteria for the assignment of a 10 percent rating.
Accordingly, the Board finds that a 10 percent disability
rating may be assigned for the veteran's service-connected
alopecia.
Fenderson considerations
In Fenderson v. West, 12 Vet. App. 119 (1999), the Court
discussed the concept of the "staging" of ratings, finding
that, in cases where an initially assigned disability
evaluation has been disagreed with, it was possible for a
veteran to be awarded separate percentage evaluations for
separate periods based on the facts found during the appeal
period.
In this case, the medical evidence of record indicates that
the veteran's alopecia has remained constant throughout the
appeal period. The March 2004 and February 2008 VA
examination reports describe similar alopecia symptomatology
and indicate that the disability has remained stable.
Accordingly, the 10 percent rating which the Board is
assigning for alopecia is effective from February 14, 2004,
the date of service connection.
Extraschedular evaluation
In the interest of economy, the Board will address the matter
of referral of the veteran's service-connected disabilities
for consideration of extraschedular ratings in a common
discussion below.
Conclusion
In summary, for the reasons stated above, it is the Board's
decision that an increased disability rating of 10 percent is
warranted. The appeal is allowed to that extent.
2. Entitlement to an increased (compensable) disability
rating for a service-connected bunion of the right foot.
Relevant law and regulations
The law and regulations pertaining to increased ratings in
general has been set forth above and need not be repeated.
Assignment of diagnostic code
As noted above, the assignment of a particular diagnostic
code is "completely dependent on the facts of a particular
case." See Butts, supra.
After a review of the evidence, the Board has determined that
the most appropriate diagnostic code for evaluation of the
veteran's service-connected right foot bunion is the code it
is currently rated under, Diagnostic Code 5284 [Foot
injuries, other]. Diagnostic Code 5284 is applicable in this
case, as it is a "catch-all" provision which provides
rating criteria for unspecified foot disability and because
there is no specific diagnostic code for bunions.
Furthermore, as illustrated below, use of Diagnostic Code
5284 will allow for the assignment of a 10 percent disability
rating.
The Board can identify nothing in the evidence to suggest
that any other diagnostic code or codes would be more
appropriate, and the veteran has not requested that any other
diagnostic code be used.
Specific schedular criteria
The veteran's service-connected bunion of the right foot is
currently assigned a noncompensable rating under Diagnostic
Code 5284.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5284 [foot injuries,
other], foot injuries productive of moderate impairment are
rated 10 percent disabling. Foot injuries productive of
moderately severe impairment are rated as 20 percent
disabling. Foot injuries productive of severe impairment are
rated as 30 percent disabling. Actual loss of the foot is
rated as 40 percent disabling.
The provisions of 38 C.F.R. § 4.31 indicate that in every
instance where the minimum schedular evaluation requires
residuals and the schedule does not provide for a zero
percent evaluation, a zero percent evaluation will be
assigned when the required symptomatology is not shown. See
38 C.F.R. § 4.31 (2007).
The Board notes that words such as "moderate", "moderately
severe", and "severe" are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence to the
end that its decisions are "equitable and just." See 38
C.F.R. § 4.6 (2007). Although the word "moderate" is not
defined in VA regulations, "moderate" is generally defined
as "of average or medium quality, amount, scope, range,
etc." See Webster's New World Dictionary, Third College
Edition, 871 (1988).
Analysis
Schedular rating
The veteran has been assigned a noncompensable disability
rating for her right foot bunion. See 38 C.F.R. § 4.31
(2007). Under Diagnostic Code 5284, an increased rating, to
10 percent, would be appropriate if this disability is shown
to be productive of impairment that could be considered
moderate in nature.
In her August 2004 notice of disagreement and July 2007 lay
statement, the veteran described right foot pain as a result
of her bunion. She has stated that she will experience pain
whether she wears shoes or not. A May 2007 podiatry consult
noted that the veteran had pain on palpation and the February
2008 VA examiner noted that the veteran had "minor
tenderness" and described her bunion as "moderate."
Based on medical and lay evidence describing pain and
tenderness in the veteran's right great toe, along with the
February 2008 VA examination report which describes the
veteran's bunion disability as "moderate", the Board finds
that an increased disability rating of 10 percent is
warranted. In other words, there is evidence of sufficient
symptomatology attributable to the service-connected bunion
to take the disability out of 38 C.F.R. § 4.31 and rather to
assign a 10 percent rating.
With respect to a 20 percent disability rating, the Board
notes that the February 2008 VA examination report indicated
that the veteran did not have pain with range of motion. The
medical evidence also does not describe any swelling or
discoloration of her right great toe. The May 2007 podiatry
consult noted that the veteran did not have any calluses or
ulcers. In short, while the medical evidence indicates that
the veteran's bunion of the right foot is equivalent to a
moderate disability, there is no evidence which indicates
that the veteran's disability approximates moderately severe
impairment. Based on this record, the Board finds that the
veteran's service-connected right foot disability is 10
percent disabling.
DeLuca considerations
The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held
that VA's review of a service-connected musculoskeletal
disability must include an assessment of the functional
impairment caused by that disability. See 38 C.F.R. §§ 4.40,
4.45 (2007).
However, the Court has held that where a diagnostic code is
not predicated on a limited range of motion alone, such as
with Diagnostic Code 5284, the provisions of 38 C.F.R. §§
4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet.
App. 7 at 11 (1996).
Fenderson considerations
In this case, the medical evidence of record appears to
support the proposition that the veteran's service-connected
right foot bunion has not changed appreciably since the
veteran filed her claim. The May 2007 podiatry consult
report and the March 2004 and February 2008 VA examination
reports indicate that the veteran's disability has remained
stable. There are no medical findings and no other evidence
which would allow for the assignment of a 20 percent
disability rating at any time during the period of time here
under consideration.
Accordingly, the 10 percent rating which the Board is
assigning for a right foot bunion is effective from February
14, 2004, the date of service connection.
Conclusion
In summary, for the reasons stated above, it is the Board's
decision that an increased disability rating of 10 percent is
warranted. The appeal is allowed to that extent.
3. Entitlement to a compensable disability rating for a
service-connected left knee scar.
Relevant law and regulations
Assignment of a diagnostic code
The veteran's service-connected left knee scar is rated under
38 C.F.R. § 4.118, Diagnostic Code 7805, which calls for
rating based on limitation of function of the affected part.
In this case, the veteran has repeatedly demonstrated full
range of motion in her left knee. See March 2004 and
February 2008 VA examination reports. Moreover, any
functional loss in the knee is contemplated in the separately
assigned 10 percent rating under Diagnostic Code 5010,
discussed in greater detail below. To separately rate the
scar based on limitation of function would amount to
prohibited pyramiding. See 38 C.F.R. § 4.14 (2007); see also
Fanning v. Brown, 4 Vet. App. 225 (1993).
Furthermore, the veteran's scars have not been described as
deep, unstable or painful. Accordingly, Diagnostic Codes
7801, 7803, 7804 and 7805 are not for application.
The Board therefore finds that Diagnostic Code 7802 is most
appropriate, since it specifically addresses scars that are
not located on the head, face or neck, that are superficial,
and that do not cause limited motion. Since this Diagnostic
Code accurately describes the veteran's left knee scar
location and symptomatology, the Board believes it is the
most appropriate diagnostic code.
Specific schedular criteria
As noted above, the applicable rating criteria for skin
disorders, found at 38 C.F.R. § 4.118, were amended effective
August 30, 2002. However, since the record reflects that the
veteran filed her claim on February 19, 2004 only the current
version of the schedular criteria are available.
Diagnostic Code 7802 [scars, other than head, face, or neck,
that are superficial and that do not cause limited motion]
requires the scar to be in excess of 144 square inches (929
sq. cm.) or greater before such scars are deemed a
compensable disability.
Analysis
Schedular rating
The veteran has been assigned a noncompensable disability
rating for service-connected right knee scar. 38 C.F.R. §
4.31 (2007). As noted above, in order to warrant a
compensable rating under Diagnostic Code 7802, the evidence
must indicate that the veteran's scar is 144 square inches or
greater.
In this case the medical evidence indicates that the veteran
has two small scars in front of her left knee. The March
2004 VA examination report describes these scars as measuring
a 1/2 inch in diameter with normal skin color and without
tenderness or any adhesions. Since the veteran's left knee
scars fall well short of the required 144 square inches, the
criteria for a higher disability rating have not been met.
Fenderson considerations
In this case, the medical evidence of record appears to
support the proposition that the veteran's service-connected
left knee scars have not changed appreciably since the
veteran filed her claim. There have been no medical findings
and no other evidence which would allow for the assignment of
a compensable disability rating at any time during the period
of time here under consideration. Based on the record, the
Board finds that a noncompensable disability rating was
properly assigned for the entire period from the date of
service connection, February 14, 2004.
Conclusion
For the reasons stated above, the Board finds that a
preponderance of the evidence is against the veteran's claim
for a compensable disability rating for the service-connected
left knee scars. The claim is therefore denied.
4. Entitlement to an increased disability rating for right
knee arthritis.
Relevant law and regulations
Specific rating criteria
Arthritis, due to trauma, substantiated by x-ray findings
will be rated as degenerative arthritis. 38 C.F.R. § 4.71a,
Diagnostic Code 5010 (2007).
Under Diagnostic Code 5003 [degenerative arthritis],
arthritis of a major joint will be rated under the criteria
for limitation of motion of the affected joint.
See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007).
For the purpose of rating disabilities due to arthritis, the
knee is considered a major joint. See 38 C.F.R. § 4.45
(2007).
Degenerative arthritis established by x-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. Where, however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003
(2007).
Under Diagnostic Code 5260, limitation of flexion of the leg
provides a non-compensable rating if flexion is limited to 60
degrees, a 10 percent rating where flexion is limited to 45
degrees, a 20 percent rating where flexion is limited to
30 degrees, and a maximum 30 percent rating if flexion is
limited to 15 degrees.
Under Diagnostic Code 5261, limitation of extension of the
leg provides a non-compensable rating if extension is limited
to five degrees, a 10 percent rating if limited to 10
degrees, a 20 percent rating if limited to 15 degrees, a 30
percent rating if limited to 20 degrees, a 40 percent rating
if limited to 30 degrees, and a 50 percent rating if limited
to 45 degrees.
Normal range of motion for the knee is defined as follows:
flexion, zero degrees to 140 degrees; and extension, 140
degrees to zero degrees. See 38 C.F.R. § 4.71, Plate II
(2007).
Analysis
Assignment of diagnostic code
Service treatment records indicate that the veteran injured
her right knee while running in December 2002 and again in
July 2003. The RO has applied Diagnostic Code 5010
[arthritis, due to trauma]. The veteran's medical records
indicate that right knee arthritis exists. She was described
as having mild patellofemoral arthritis in the March 2004 VA
examination report and x-rays revealed "minimal degenerative
change involving [the] right knee joint." The record
therefore supports the assignment of Diagnostic Code 5010,
traumatic arthritis.
Thus, the Board finds that the application of Diagnostic Code
5010 (and thus also Diagnostic Codes 5003, 5260 and 5261) is
appropriate.
Schedular rating
During March 2004 and February 2008 VA examinations the
veteran demonstrated 125 degrees of flexion and zero degrees
of extension in her right knee. [As noted above, normal knee
extension is 140 degrees and normal knee flexion is zero
degrees.]
Diagnostic Code 5260 contemplates a noncompensable evaluation
where there is limitation of knee flexion to 60 degrees,
which is far exceeded by the 125 degrees recorded in
connection with the veteran's VA examinations.
Diagnostic Code 5261 contemplates a noncompensable evaluation
with a limitation of knee extension to 5 degrees. A
compensable disability evaluation obviously cannot be
assigned under Diagnostic Code 5261 for zero degrees, or
normal, extension.
Based on these findings, a compensable rating may not be
assigned based on limitation of motion of the right knee.
The x-ray findings of right knee arthritis do allow for the
assignment of a 10 percent disability evaluation under
Diagnostic Code 5003. That is the rating which has been
assigned by the RO.
DeLuca considerations
The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held
that VA's review of a service-connected musculoskeletal
disability must include an assessment of the functional
impairment caused by that disability. See 38 C.F.R. §§ 4.40,
4.45 (2007). The Board has therefore taken into
consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45.
The Board has no reason to doubt that the veteran experiences
right knee pain. However, the medical evidence does not
indicate that the veteran's range of motion is limited by
pain, fatigue, weakness, lack or endurance, or lack of
incoordination. In fact, during the February 2008 VA
examination the examiner specifically stated that "there is
no additional limitation of motion due to pain, fatigue,
weakness, or lack of endurance on repetitive use of the"
veteran's right knee.
The Board additionally observes that there is no other
evidence of record which supports the assignment of
additional disability based on DeLuca factors. For these
reasons, the Board finds that additional disability, over and
above the 10 percent rating which has already been assigned,
is not warranted for the veteran's service-connected right
knee arthritis.
Fenderson considerations
In this case, the medical evidence of record indicates that
the veteran's right knee range of motion has remained
constant throughout the appeal period. The range of motion
findings from the 2004 and 2008 VA examinations are
identical. There have been no medical findings and no other
evidence which would allow for the assignment of a different
disability rating at any time under consideration. As a
result the Board finds that staged ratings are not
appropriate. The veteran was properly assigned a 10 percent
disability rating for the entire period from the date of
service connection, February 14, 2004.
Conclusion
The Board concludes for the reasons stated above that an
increased disability rating for service-connected arthritis
of the right knee, rated as 10 percent disabling, is not
warranted.
Extraschedular consideration
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993).
Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board
cannot make a determination as to an extraschedular
evaluation in the first instance. See also VAOPGCPREC 6-96.
In this case the RO specifically considered 38 C.F.R.
§ 3.321(b)(1) and its application to the veteran's claims in
the April 2008 Supplemental Statement of the Case (SSOC)
Accordingly, the Board will address the possibility of the
assignment of an extraschedular rating for the veteran's
claims.
According to the regulation, an extraschedular disability
rating is warranted upon a finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization that would render
impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1) (2007).
Under Thun v. Peake, No 05-2066 (U.S. Vet. App. April 23,
2008), there is a three-step inquiry for determining whether
a veteran is entitled to an extraschedular rating. First,
the Board must first determine whether the evidence presents
such an exceptional disability picture that the available
schedular evaluations for that service-connected disability
are inadequate. Second, if the schedular evaluation does not
contemplate the level of disability and symptomatology and is
found to be inadequate, the Board must then determine whether
the claimant's disability picture exhibits other related
factors such as those provided by the regulation as
"governing norms." Third, if the rating schedule is
inadequate to evaluate a veteran's disability picture and
that picture has attendant thereto related factors such as
marked interference with employment or frequent periods of
hospitalization, then the case must be referred to the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service to determine whether, to accord justice,
the veteran's disability picture requires the assignment of
an extraschedular rating.
With respect to the initial inquiry posed by Thun, the Board
has been unable to identify an exceptional or unusual
disability picture with respect to any of the four service-
connected disabilities here on appeal, and neither has the
veteran. The medical evidence fails to demonstrate that the
symptomatology of any of the veteran's disabilities is of
such an extent that application of the ratings schedule would
not be appropriate. In fact, as discussed in detail above,
the symptomatology of the veteran's disabilities is
specifically contemplated by the respectively assigned
diagnostic codes. Accordingly, the Board finds that the
veteran's disability picture has been contemplated by the
ratings schedule.
Since the available schedular evaluation adequately
contemplates the veteran's level of disability and
symptomatology, the second and third questions posed by Thun
become moot. Nevertheless, the Board will briefly note that
the evidence in this case does not demonstrate any of the
factors provided in the "governing norms" such as frequent
hospitalization or marked interference with employment.
See 38 C.F.R. § 3.321(b)(1). Indeed, the evidence does not
indicate that the veteran has been hospitalized at all for
any of the disabilities at issue.
With respect to employment, the record contains no evidence
of unusual disability caused by any of above-discussed four
service-connected disabilities. The record reflects that the
veteran is currently employed as a clerk at a children's
hospital. In her August 2004 notice of disagreement, the
veteran stated that her disabilities prevent her from
performing her work duties "at top speed". This is not
indicative of marked interference with employment. Thus,
while the Board has no reason to doubt the veteran's
statements, there is no evidence that the veteran is
occupationally impaired beyond the level contemplated in the
assigned disability rating. There is nothing in the current
evidence of record to indicate that the veteran's
disabilities cause any unusual employment impairment. See
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that
the disability rating itself is a recognition that industrial
capabilities are impaired].
Given the lack of evidence showing unusual disability with
respect to the veteran's service-connected disabilities, the
Board concludes that a remand to the RO for referral of this
issue to the VA Central Office for consideration of an
extraschedular evaluation is not warranted. The Board
therefore has determined that referral of the case for extra-
schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is
not warranted.
(CONTINUED ON NEXT PAGE)
ORDER
An increased disability evaluation of 10 percent is granted
for alopecia, subject to governing regulations concerning the
payment of monetary benefits.
An increased disability evaluation of 10 percent is granted
for a bunion of the right foot, subject to governing
regulations concerning the payment of monetary benefits.
Entitlement to a compensable disability rating for a service-
connected left knee scar is denied.
Entitlement to an increased disability rating for service-
connected right knee arthritis is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs